Bhopinder Singh v. Hong Kong Sar Government Immigration Department

HCAL 2233/2019

[2019] HKCFI 1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2233 OF 2019

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Before: Hon Chow J in Court

Date of Hearing: 9 August 2019

Date of Decision: 9 August 2019

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D E C I S I O N

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INTRODUCTION

1.This is the Applicant’s application for a writ of habeas corpus in respect of his current detention which commenced on 4 February 2019 under Section 32(3) of the Immigration Ordinance, Cap 115 (“the Ordinance”).

BASIC FACTS

2.The Applicant is a non-refoulement claimant. Details of his personal and immigration background and his non-refoulement claims are set out in paragraphs 1 to 8 of the Form CALL-1 of Campbell-Moffat J dated 13 April 2018 in HCAL 624/2017, and will not be repeated here.  The following brief summary shall suffice for the present purpose.

3.The Applicant first came to Hong Kong on 14 March 2009, and had overstayed since 29 March 2009.  He lodged a torture claim on 15 April 2009, and was released on recognizance on 22 April 2009. He failed his reporting obligation on 3 occasions, namely, on 24 December 2014, 15 July 2015 and 16 February 2016, but was subsequently released on recognizance on each occasion.

4.The Applicant’s non-refoulement claims on all applicable grounds were rejected by the Director on 29 May 2015 and 10 November 2016.

5.On 22 September 2016, the Applicant was convicted of the offences of (i) theft, and (ii) possession of an identity card relating to another person, and sentenced to 12 months’ imprisonment in total. On his discharge from prison on 12 April 2017, the Applicant was detained under various provisions of the Ordinance until 16 November 2017 (see paragraph 9 below).

6.On 31 May 2017, the Applicant’s appeal or petition against the Director’s rejection of his non-refoulement claims was dismissed by the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the TCAB”).

7.On 11 September 2017, a deportation order for life was issued against the Applicant under Section 20(1)(a) of the Ordinance.

8.On 15 September 2017, the Applicant applied for leave to apply for judicial review of the decisions of the Director and TCAB rejecting his non-refoulement claims (HCAL 624/2017).

9.In view of his application for judicial review, the Applicant was again released on recognizance on 16 November 2017.

10.On 13 April 2018, the Applicant’s application for leave to apply for judicial review was refused by Campbell-Moffat J.

11.On 24 August 2018, the Applicant was arrested for the offence of theft whilst on recognizance.  On 27 August 2018, he was convicted of that offence and sentenced to 8 months’ imprisonment.  His prison term ended on 4 February 2019.

12.The Applicant has, since his discharge from prison on 4 February 2019, been detained under Section 32(3) of the Ordinance pending his removal from Hong Kong.

13.On 6 May 2019, a review of the Applicant’s detention was carried out.  On 8 May 2019, it was decided that the Applicant’s detention ought to continue because (i) his removal was going to be possible within a reasonable time, (ii) he might abscond and/or re-offend, (iii) he did not have a close connection or fixed abode in Hong Kong, and (iv) there were no other circumstances in favour of his release.

14.On 5 June 2019, the Applicant applied for leave to appeal against the decision of Campbell-Moffat J.  That application, which is being treated as an application for an extension of time to seek leave to appeal against the learned Judge’s decision, has been listed to be heard on 20 September 2019.

15.On 14 June 2019, a second review of the Applicant’s detention was carried out.  On 17 June 2019, it was decided that the Applicant’s detention ought to continue for the same reasons mentioned in paragraph 13 above.

16.On 26 July 2019, a third review of the Applicant’s detention was carried out.  On 6 August 2019, it was decided that the Applicant’s detention ought to continue for the same reasons mentioned in paragraph 13 above.

DISCUSSION

17.The legal principles governing an application for habeas corpus are well settled.  The central question is whether the detention is unlawful (see Fidelis Ahuwaraezeama Emen v Superintendent of Victoria Prison [1998] 2 HKLRD 448, at 453C-D per Stock J, as he then was).

18.An unlawful detention is one that is made without proper lawful authority.  An initially lawful detention may become an unlawful detention if it fails to meet the Hardial Singh principles as summarised by Dyson LJ (as he then was) in R(I) v Secretary of State for the Home Department [2003] INLR 196 (at paragraph 46) and adopted by Ribeiro PJ in Ghulam Rbani v Secretary for Justice for and on behalf of the Director of Immigration (2014) 17 HKCFAR 138 (at paragraph 23), as follows:-

“(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

(iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal.”

19.In relation to the question of whether a person has been detained for a period that is reasonable in all the circumstances, the following statement of principle by Au J in Bhullar Angad Singh v HKSAR, HCAL 134/2014 (21 October 2014), at paragraph 17, is applicable:-

“The Director has a discretion in respect of the continued detention of a person pending his deportation. Pending deportation means no more than ‘until’ deportation, and so long as the Director is intent upon removing a person at the earliest possible moment and the Director remains reasonably of the view that he can do so within a reasonable period of time and that it will not be impossible for him to remove the person within that reasonable period of time, then the Director is entitled to continue to detain in the exercise of his discretion: Mahesh Rai v Secretary for Security and the Director of Immigration (HCAL 81/2008, 21 August 2008, Hartmann J) at paragraph 12; A (Torture Claimant), supra, at paragraph 31.”

20.The Applicant is currently detained under Section 32(3) of the Ordinance, which provides as follows:-

“A person in respect of whom a removal order under section 19(1)(a) or a deportation order is in force may be detained under the authority of the Secretary for Security pending his removal from Hong Kong under section 25.”

21.The Applicant’s current detention is, prima facie, lawful because:-

(1)  a deportation order under Section 20(1)(a) of the Ordinance in respect of the Applicant is in force; and

(2)  the Applicant is being detained pending his removal from Hong Kong under Section 25 of the Ordinance.

22.On the question of whether the Applicant has been detained for a period that is reasonable in all the circumstances, there is nothing in the evidence before the court to show that the Secretary is using the power of detention for any purposes other than for removal of the Applicant, or it has become apparent to the Secretary at any time that it would not be possible to effect the Applicant’s removal within a reasonable time. The Applicant has been detained since 4 February 2019, for a period of some 6 months up to the present moment.  The Applicant’s non-refoulement claims have been rejected by the Director and TCAB, and his application for leave to apply for judicial review has been refused by Campbell-Moffat J.  He now requires an extension of time to be granted by the court to seek leave to appeal against the decision of Campbell-Moffat J.  That application will be heard on 20 September 2019.

23.There is nothing to suggest that the Director/Secretary have failed to act with reasonable diligence or expedition to effect the Applicant’s removal.

24.Although it is a matter for the court, not the Secretary or Director, to determine whether a detention has exceeded a reasonable period of time, and in that sense the court is the primary decision-maker and its task is not merely to review the reasonableness of the Secretary/Director’s decision in the public law sense, as pointed out by Toulson LJ in R(A) v SSHD [2007] EWCA Civ 804, at paragraph 62:

“Where the court is concerned with the legality of administrative detention, I do not consider that the scope of its responsibility should be determined by or involve subtle distinctions. It must be for the court to determine the legal boundaries of administrative detention. There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary’s views as may seem proper.”

25.The Secretary/Director are better placed than the court to consider matters such as the risks of absconding or reoffending, which are fact-sensitive issues and involve a broad range of considerations on which the court has little knowledge or expertise.  Without in any way shirking its responsibility, the court is entitled to place weight on the Secretary/Director’s assessment on those matters.  In the present case, the Secretary/Director have consistently come to the view that the Applicant, if released, may abscond and/or reoffend.  Such view is supported by the fact that the Applicant previously failed his reporting obligation on 3 occasions, and committed an offence (theft) whilst on recognizance, for which he was sentenced to 8 months’ imprisonment.

26.In support of his application, the Applicant says in his affirmation that he could not go back to his home country in India because his life will be in danger.  Whilst that is a matter relevant to his non-refoulement claims, it is not relevant to the current application for habeas corpus. In his oral submissions, the Applicant also says that he can provide a surety or guarantee up to HK$10,000.

27.I consider that the Secretary/Director have acted with reasonable diligence and expedition to effect the Applicant’s removal.  The Applicant has been detained for a period that is reasonable in all the circumstances, and his current detention is in compliance with the Hardial Singh principles.  It is reasonable for the Secretary/Director to take the view that the Applicant can be removed within a reasonable period of time, and that he should be detained pending his removal from Hong Kong.

DISPOSITION

28.The present application for a writ of habeas corpus is dismissed, with no order as to costs.

The Applicant acting in person

Mr Sunny Li, Senior Government Counsel (Ag), and Mr Gilbert Mok, Government Counsel, of the Department of Justice, for the Respondent